B-125518, MAR. 12, 1956

B-125518, MAR. 12, 1956

TO MASTER SERGEANT DALTON D. WISHON:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 30, 1955, CONCERNING YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE FOR THE PERIOD MAY 25, 1949, TO FEBRUARY 29, 1952, WHILE YOU WERE ON DUTY AS A MEMBER OF THE JOINT UNITED STATES MILITARY AID GROUP, GREECE.

BY LETTER DATED DECEMBER 29, 1954, TO THE FINANCE OFFICER, MAAG, FORMOSA, APO 63, SAN FRANCISCO, CALIFORNIA, YOU MADE CLAIM FOR SUCH ALLOWANCE SAYING THAT YOU "DID NOT RECEIVE AN ALLOWANCE FOR SUBSISTENCE OTHER THAN STATION ALLOWANCES AND LEAVE RATIONS.' YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED AUGUST 9, 1955. IN THE LETTER OF AUGUST 30, 1955, REQUESTING RECONSIDERATION OF THE SETTLEMENT YOU SAY THAT A CLAIM FOR SUCH ALLOWANCE WAS FILED BY MASTER SERGEANT HARVEY M. JOHNSON, AND THAT YOU BELIEVE THAT IT WAS ALLOWED FOR THE PERIOD AUGUST 1, 1951, TO FEBRUARY 29, 1952. YOU SAY THAT YOU AND SERGEANT JOHNSON WERE MEMBERS OF THE SAME SERVICE, ASSIGNED TO THE SAME ORGANIZATION UNDER IDENTICAL CIRCUMSTANCES, AND THAT YOU CANNOT UNDERSTAND WHY YOUR CLAIM IS NOT FOR ALLOWANCE AT LEAST FOR THE PERIOD COVERED BY HIS CLAIM.

RESPECTING YOUR CLAIM FOR THE PERIOD PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, EXECUTIVE ORDER NO. 9871, JULY 8, 1947--- PROMULGATED PURSUANT TO SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, AS AMENDED, AND SECTION 12 OF THAT ACT AS AMENDED BY SECTION 203 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 859--- SET FORTH IN PART I REGULATIONS GOVERNING THE GRANTING OF MONETARY ALLOWANCES FOR QUARTERS AND SUBSISTENCE TO ENLISTED MEN OF THE VARIOUS SERVICES NOT FURNISHED QUARTERS AND RATIONS IN KIND. PART II OF THAT EXECUTIVE ORDER PROVIDED THAT THE HEADS OF THE DEPARTMENTS CONCERNED COULD AUTHORIZE PAYMENT OF PER DIEM ALLOWANCES IN LIEU OF ACTUAL AND NECESSARY EXPENSES, CONSIDERING ALL ELEMENTS OF COST OF LIVING, INCLUDING COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES, TO MEMBERS OF THEIR RESPECTIVE SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, WHETHER OR NOT IN A TRAVEL STATUS. THE HEADS OF THE DEPARTMENTS WERE FURTHER AUTHORIZED TO PRESCRIBE SUCH ADDITIONAL REGULATIONS AS NECESSARY TO CARRY OUT THE PROVISIONS OF PART II OF THE EXECUTIVE ORDER. SINCE THE PER DIEM ALLOWANCES SO CONTEMPLATED, WHEN AUTHORIZED FOR ENLISTED PERSONNEL ON THE BASIS INDICATED, PROVIDED FOR THE PAYMENT TO THEM OF AMOUNTS DESIGNED TO REIMBURSE THEM FOR EXPENSES INCURRED FOR QUARTERS AND SUBSISTENCE AT THEIR FOREIGN STATIONS, IT IS EVIDENT THAT THE PAYMENT OF SUCH ALLOWANCE ACCOMPLISHED THE PURPOSE FOR WHICH THE PAYMENT OF THE MONETARY ALLOWANCE AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT WAS DESIGNED. HENCE, PAYMENT OF SUCH MONETARY ALLOWANCES IN ADDITION TO THE PER DIEM ALLOWANCES AUTHORIZED FOR ENLISTED PERSONNEL IN FOREIGN COUNTRIES WOULD RESULT IN TWO PAYMENTS FOR THE SAME PURPOSES. SINCE SUCH RESULT OBVIOUSLY WAS NOT INTENDED IN THE AUTHORIZATION FOR THE PAYMENT OF THE PER DIEM ALLOWANCES TO ENLISTED MEN TRAVELING OR PERFORMING DUTIES IN FOREIGN COUNTRIES, THE CONCLUSION IS REQUIRED THAT THE PER DIEM ALLOWANCES, WHEN AUTHORIZED BY ADMINISTRATIVE REGULATIONS UNDER AUTHORITY OF PART II OF EXECUTIVE ORDER NO. 9871, WERE FOR PAYMENT IN LIEU OF THE MONETARY ALLOWANCES AUTHORIZED UNDER PART I OF SUCH EXECUTIVE ORDER AND THAT AUTHORITY DID NOT EXIST FOR THE PAYMENT OF THE MONETARY ALLOWANCES AND PER DIEM ALLOWANCES CONCURRENTLY.

AS TO YOUR CLAIM FOR SUCH ALLOWANCE ON AND AFTER OCTOBER 1, 1949, IT WAS PROVIDED IN CHANGE 4, DATED DECEMBER 22, 1949, TO SR 35-3080-1, EFFECTIVE OCTOBER 1, 1949, THAT THE SUBSISTENCE PORTION OF THE STATION ALLOWANCES THEN AUTHORIZED WOULD BE PAID IN LIEU OF, AND NOT IN ADDITION TO, ANY SUBSISTENCE ALLOWANCES PRESCRIBED UNDER THE CAREER COMPENSATION ACT OF 1949. A SIMILAR PROVISION TO THE SAME EFFECT WAS CONTAINED IN PARAGRAPH 4308, JOINT TRAVEL REGULATIONS, DATED APRIL 1, 1951, EFFECTIVE THE SAME DATE. WHILE INSTRUCTION MEMORANDUM 2-5, DATED FEBRUARY 1, 1952, CHANGED PARAGRAPH 4308 TO PROVIDE THAT ALL STATION PER DIEM ALLOWANCES SHALL BE IN ADDITION TO ANY OTHER BASIC ALLOWANCE FOR SUBSISTENCE AND QUARTERS TO WHICH A MEMBER IS ENTITLED UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT, SUCH CHANGE WAS NOT EFFECTIVE FOR THE COUNTRY WHERE YOU WERE STATIONED UNTIL MARCH 1, 1952.

WHILE COMPLETE PAY RECORDS FOR THE ENTIRE PERIOD OF YOUR CLAIM ARE NOT PRESENTLY BEFORE US FOR EXAMINATION, THE RECORDS BEFORE US SHOW THAT YOU WERE PAID A STATION PER DIEM ALLOWANCE FROM JULY 1, 1949, TO DECEMBER 17, 1951. SINCE YOUR CLAIM IS FOR A SUBSISTENCE ALLOWANCE IN ADDITION TO THE STATION PER DIEM ALLOWANCE, AND AS THE RECORD SHOWS THAT A STATION PER DIEM ALLOWANCE WAS PAID TO MEMBERS WHO HAD ASSIGNMENTS SIMILAR TO YOURS, IT IS ASSUMED THAT YOU RECEIVED SUCH STATION ALLOWANCE DURING THE PERIOD INVOLVED. THEREFORE, ON THE PRESENT RECORD THERE IS NO AUTHORITY FOR THE PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE FOR THE PERIOD MAY 25, 1949, TO FEBRUARY 29, 1952. ACCORDINGLY, THE SETTLEMENT OF AUGUST 9, 1955, IS SUSTAINED.

REGARDING THE STATEMENT IN YOUR LETTER OF AUGUST 30, 1955, AS TO THE PAYMENT OF BASIC ALLOWANCE FOR SUBSISTENCE TO MASTER SERGEANT JOHNSON FOR THE PERIOD AUGUST 1, 1951, TO FEBRUARY 29, 1952, YOU ARE ADVISED THAT THIS MATTER IS RECEIVING OUR CONSIDERATION AND THAT IN THE EVENT IT IS DETERMINED THAT THE PAYMENT OF SUCH ALLOWANCE FOR SUBSISTENCE WAS ERRONEOUS, APPROPRIATE ACTION WILL BE TAKEN IN THE MATTER.